Constitutional implications of the Government's draft Scotland clauses - Political and Constitutional Reform Contents


Conclusions and recommendations


The draft Bill clauses and the legislative timetable

1.  Given the urgency which the Government has attached to the legislation for further devolution to the Scottish Parliament, and the commitments already made to the people of Scotland, we must assume that there will be no opportunity for the new Parliament to undertake pre-legislative scrutiny of its proposed provisions. While we welcome the Government's commitment to give the draft Scotland clauses some measure of consideration ahead of their introduction in such a Bill, we find it disappointing that no attempt has been made to provide for full and formal pre-legislative scrutiny of the clauses by this Parliament before its dissolution. (Paragraph 15)

2.  The draft clauses will have significant consequences for the future of the United Kingdom. While we acknowledge the political imperatives which led the UK pro-Union parties to make commitments for further devolution to a swift timetable, we are concerned that this seems to have been at the expense of broader consideration of the implications of these commitments for the future of the UK. Parliament's first significant engagement with these proposals will be when they are introduced as a Scotland Bill. It is not clear to us that the legislative process is the most effective means for Parliament to consider the future shape of the Union. (Paragraph 16)

Permanence of the devolved institutions (clause 1)

3.  The Scottish Parliament is, to all intents and purposes, a permanent institution. The political circumstances in which the Parliament could cease existence are at present inconceivable. It is, as the Parliamentary Under-Secretary of State for Scotland told us, "a prerequisite of our United Kingdom". (Paragraph 41)

4.  While draft clause 1, on the permanence of the Scottish Parliament, may seek to recognise the Scottish Parliament and Scottish Government as constitutionally permanent, we doubt whether such a provision would have the effect of making the institutions permanent in constitutional terms. While we note that clause 1 as presently drafted has been described as "legally vacuous", we consider that there is no mischief in the clause as drafted. The existence of such a statutory recognition of the permanence of the Scottish devolved institutions is likely to constitute a further political (if not a legal) obstacle to any attempted abolition of those institutions. (Paragraph 42)

5.  While there are potential mechanisms which would allow for contingent entrenchment of the Scottish institutions—such as the stipulation of certain preconditions for their abolition, such as a majority of at least two-thirds in the House of Commons, the consent of the Scottish Parliament or the wish of the Scottish electorate expressed through a referendum—the introduction of any mechanism into UK legislation which made express provision for the abolition of the Scottish Parliament, however stringent the conditions to be met, would potentially frustrate the policy aim of providing reassurance about the permanence of the institutions. We do not recommend that the clause be redrafted to provide for contingent entrenchment. (Paragraph 43)

6.  That said, we note that it would be possible to achieve the Government's policy aim more effectively if the UK's territorial constitution were codified in a way which clearly set out the respective competences and powers of UK and devolved institutions. A Statute of the Union, or a full written constitution, could provide greater legal certainty over the status of the Scottish institutions, were any further certainty required. (Paragraph 44)

Entrenching the Sewel Convention (clause 2)

7.  Draft clause 2 fails to acknowledge that the Sewel Convention in practice extends to legislation affecting the competences of the devolved institutions. This significant deficiency must be addressed in any redrafted version. (Paragraph 67)

8.  Despite what the Scotland Office claims, clause 2 does not put the Sewel Convention "on a statutory footing" (in the sense of giving it the force of a statute), in line with the Smith Commission Agreement. In its proposed form it can only be said to strengthen the Convention in political terms. (Paragraph 68)

9.  If the Convention were to be given the force of statute, this would still, according to orthodox constitutional theory, not represent any entrenchment of the competence of the Scottish Parliament. There is a case that if the Convention were to be given the force of statute, it would constitute a "manner and form" constraint on the power of future Parliaments to legislate in respect of the matters covered by the Convention. (Paragraph 69)

10.  The presence of the word "normally" in the Convention is clearly problematic when it comes to giving it the force of a statute, and we recommend that this be addressed in any redraft of the clause. One way to do so would be by elaborating in detail the circumstances in which the UK Parliament would be allowed to legislate on a matter covered by the Convention without the consent of the Scottish Parliament. Alternatively, the Convention might be given the force of statute as it stands but with the addition of a requirement for the government to set out its reasons for legislating on a matter covered by the Sewel Convention without the consent of the Scottish Parliament where it seeks to do so. (Paragraph 70)

Operation of the devolved institutions and elections (clauses 3 to 9)

11.  Draft clauses 3 to 9 largely deliver as promised in the Command Paper in implementing the Smith Commission Agreement, but we recommend further consideration be given to their detailed drafting. (Paragraph 102)

12.  The drafting of clause 3 is confusing. As we were told, it is "a bit of a thicket". We recommend that it be re-drafted if possible to clarify its effect. (Paragraph 103)

13.  The super-majority requirement contained in clause 4 is desirable and appears to implement the Smith Commission Agreement. It may be appropriate to extend the devolved powers to which it applies, but we do not make any recommendations about that. (Paragraph 104)

14.  The cost of meeting the Electoral Commission's functions in relation to Scottish Parliament elections as devolved to the Scottish Parliament by draft clause 8 was not dealt with by the Smith Commission Agreement. We invite the Government to consider this. (Paragraph 105)

15.  Given the unicameral nature of the Scottish Parliament, we invite the Government to consider whether some additional safeguard (such as a super-majority requirement) should be introduced to the process, amended by draft clause 9, for implementing recommendations of the Boundary Commission for Scotland about Scottish Parliament boundaries. (Paragraph 106)

Conclusion

16.  There are clearly difficulties in establishing beyond doubt the permanent status of the Scottish Parliament in the UK's constitutional arrangements, given the constitutional principle of parliamentary sovereignty. The legal claims made in draft clause 1, while seeking to affirm the permanence of the Scottish Parliament, have the capacity to be misunderstood. (Paragraph 110)

17.  Nevertheless, the political fact is that the Scottish Parliament is effectively permanent and its abolition is inconceivable. Draft clause 1 does nothing to weaken this fact. As the Parliamentary Under-Secretary of State told us, it is an essential prerequisite of the United Kingdom. There are means whereby the Scottish Parliament could be recognised as a permanent constitutional institution, but these would require broad reform of the basis of the UK's uncodified constitution. We have explored such means in the course of this Parliament as part of our inquiries into constitutional codification and a constitutional convention. (Paragraph 111)

18.  We recommend that the Wales Office, when preparing legislation to give effect to the Government's proposals for further devolution to Wales, take account of the conclusions and recommendations of this report in respect of the drafting of the constitutional clauses for a Scotland Bill. (Paragraph 112)

19.  The incoming administration, when introducing legislation to implement the Smith Commission Agreement and other cross-party proposals on constitutional reform which affect the Union, must ensure that further proposals for constitutional reform are worked out in full recognition of their consequences for all parts of the United Kingdom and in full consultation with Parliament. It is axiomatic that adequate opportunity is given for a fully informed public debate on the Smith proposals before a full Bill is finally brought before Parliament. (Paragraph 113)

20.  We recommend that the Government seek to establish, at the earliest opportunity, a mechanism for considering in the round the effect of the proposed devolution settlements in Scotland, Wales and Northern Ireland, together with the trends towards decentralisation in England, and examining the measures required to ensure that such changes strengthen the Union as a whole. (Paragraph 114)


 
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Prepared 22 March 2015